Disability Rights - Welcome to the UN Human Rights Agenda
Some essential and further legal elements of the Convention
Disability is a part of the human experience and a part of the HR legal experience since the movement of PwD has come up with a fundamental assertion in the late 60-ies: "We appreciate that you loved us. We want our rights - now!"
The human rights fighter, Dr. Martin Luther King said the following: "I have a dream. This nation will rise up and live the meaning of its Credo." I apply the phrase "this nation" to the human race itself. For me, standing here, the Credo is the CRPD. What I see is that "this nation" did not rise up yet and it has not lived the meaning of its Credo. Because we have only 50 ratifying States Parties to the Convention and only 29, those have ratified the Optional Protocol - some of them unfortunately with reservations. And because "this nation" produces genocide, segregation, lack of clear water, prejudices, negative stereotypes, closed institutions etc. - more and more States Parties should ratify it week by week!
The crucial importance and progressivity of the Convention
It is the most extensively debated international convention ever, created with maximum involvement of the civil society. It even defines the desirable role of PwDs and DPOs, eg., in the course of its implementation under Art 4, para 3: "States Parties shall closely consult with and actively involve persons with disabilities".
The Convention is a milestone in legislation in the international arena, because it extensively interprets the rights and the capacity to act of persons living with intellectual and psychosocial disabilities. It marks a breakthrough for the world towards personal autonomy.
Its control mechanism is extremely strong compared to any other international treaty on disability.
Implementation/1: The unified entity approach & the problem of reservations
The Convention is a unified entity. From this respect declarations and reservations are dangerous on the long run, because these might diminish the scope and protection afforded by the Convention.
However, Art. 46 does not exclude reservations, those might undermine the genuine aim of the Convention. This is why the CRPD Committee in its first declaration urged UN Member States to ratify the Convention - without reservations and declarations. Instead of reservations States Parties are required to ensure that their own domestic law is consistent with the requirements of the Convention.
Implementation/2: The core of the Convention: Art. 12
This article on legal capacity and capacity to act is the core article of the Convention. Because it holds implicitly the picture of the disabled person behind the Treaty. This picture in NOT a picture of someone who is INcapable, UNable, or DISabled. On the contrary: this picture of persons with disAbilities shows a person, who, while needs further empowerment, is an active partner, able and capable. This is why Art. 12 represents the essence of our Convention. Reservations and declarations in respect of Art. 12 are against Art. 46, but also against Art. 4, para 1 (requires States Parties “to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability”), so those are not acceptable.
A good practice from Hungary: the new, reformed version of the Civil Code ensuring capacity to act for people living under partial or plenary guardianship is just being adopted by the Parliament.
Implementation/3: Review of the domestic law and current economic crisis
According to Art. 4, para 1 (b) States Parties to the Convention are obliged to “take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities”. Adequate implementation of the Convention presupposes an extensive internal review of legal system for compliance.
However it is crucial as well: not to reduce governmental activities in order to implement the Convention, not to reduce the number and the level of disability programs and not to reduce valuable legislative efforts on the States Parties' level. Because, as we all know: even if there are less resources, there are always resources available and it is up to the States Parties to use these resources for disability issues in the future as well.
Implementation/4: Social model vs. medical model
According to the medical model, in PwDs there is something gone wrong, so they must become rehabilitated. It often claims that disability should be prevented (dangerous!); and medical model has a tendency of referring to social welfare. The social model is the opposite. It states: there is something wrong in the society, if it is unable to integrate PwDs, so the society itself has to be rehabilitated (GK-Wade). The Convention is based on the social model. It means that all medically based definitions, those referring to incapacities of PwD, should be repealed ("outcorporated" from domestic legislations).
Disability rights appeared on the UN HR agenda at last. It is our common responsibility: not only to keep those there, but also to integrate and mainstream them into the UN HR machinery.